Tuesday, January 19, 2016

Binding precedent pending review: Alternative A or B?

Today's DJ features Binding Precedent, Pending Review, by H&L's Jessica Di Palma, about the pending proposal to amend Rule 8.1105(e)(1) regarding publication status of appellate opinions when review is granted by the Supremes. 
The proposed new default rule would be the opposite of the status quo: Unless the Supreme Court orders otherwise, a published Court of Appeal opinion would remain published after review is granted. The proposal notes that the Supreme Court would retain its power under current Rule 8.1105(e)(2) to order that any published opinion, including an opinion that is pending review by the court, be depublished.

The proposal also seeks comment on whether to amend Rule 8.1115 to address the citation of published appellate opinions while they are under review and following decision on review. Proposed new subdivision 8.1115(e)(1) would permit the citation of appellate opinions while they are under review by the Supreme Court, but would require any such citation to note the grant of review and any subsequent action by the Supreme Court. 

The proposal also includes two alternatives concerning the precedential effect of a published appellate opinion pending Supreme Court review.
Alternative A would provide that, unless otherwise ordered by the Supreme Court, a Court of Appeal opinion would remain binding precedent on all California superior courts while the case is pending review in the Supreme Court.
Alternative B would provide that a published Court of Appeal opinion would have "no binding or precedential effect" and could "be cited for persuasive value only" while under Supreme Court review. 
Finally, proposed new subdivision 8.1115(e)(2) would provide that after the Supreme Court's decision in the case, a published Court of Appeal opinion would have binding or precedential effect only to the extent it was not inconsistent with the Supreme Court's subsequent opinion. 
Interestingly, the main point of disagreement among the 26 supporters is the choice between proposed alternatives A and B, governing the precedential value of appellate decisions while review is pending. The supporters were almost evenly split between the two alternatives, with 11 commentators favoring alternative A and nine favoring alternative B.
By July we will know the fate of California's long-standing depublication practice.
The Commission on the Future of California’s Court System has posted concepts it will explore during its Feb. 8-9 public comment session in San Francisco. Chief Justice Tani G. Cantil-Sakauye appointed commission members last February and charged them with proposing recommendations for making the court system more efficient and effective. The importance of the commission’s work was underscored in the Governor’s proposed state budget, which was announced earlier this month. Proposed Concepts Concepts and goals under consideration for public comment include, but are not limited to: increasing online access in all case types, improving services to juveniles and their families by consolidating dependency and delinquency cases into one unified juvenile court, reducing continuances in criminal cases, ensuring access to the court record for all litigants, adding an intermediate tier for jurisdictional amounts for unlimited civil cases, and ensuring that court labor costs and negotiations are both equitable and efficient. See the commission’s webpage for the complete list and additional detail on the proposed concepts. Comment Procedures Members of the public can request to speak at the comment session or submit written comments either before or after the session. A link to the live audiocast of the public comment session—posted approximately 15 minutes before the session―will be available on the Futures Commission webpage. For more information, view the comment procedures. The commission held a similar comment session on Dec. 8 to solicit input on proposed concepts related to judgeships, trial court funding, court-ordered debt, and traffic infractions. The Futures Commission plans to hold a second public comment session later this year. - See more at: http://www.courts.ca.gov/34118.htm#sthash.oEfpSIPo.dpuf